Laburnnam Courts Limited v Diamond Trust Bank Limited (Civil Appeal (Application) E358 of 2020) [2025] KECA 1213 (KLR)
The bottom line
#The Court of Appeal struck out an appeal because the appellant filed late and left key documents out of the appeal record.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the notice of appeal was filed and served out of time
- 2.Whether the record of appeal is fatally defective
Key legal issues
#Timeliness of the notice of appeal
The notice of appeal was lodged more than a month after the ruling, well beyond the 14 days under Rule 77, with no extension of time sought or granted under Rule 4.
The ruling was delivered on 5th June 2020 but the notice of appeal was only filed on 20th July 2020. Rule 77(2) requires lodgement within fourteen days subject to rules 84 and 97. No application under Rule 4 for extension of time was made. This allegation was uncontroverted as the application was unopposed, so the failure to take the essential step within the prescribed time was established.
Defective record of appeal
The record of appeal was incomplete, omitting annexures and an application referenced in the proceedings, and including a document not part of the court proceedings; this constituted a failure to take an essential step under Rule 86.
Rule 89 prescribes in mandatory terms the documents a record of appeal must contain, including pleadings, affidavits and documents put in evidence. Pleadings are indispensable to understanding the issues decided below. The appellant omitted several referenced applications and annexures and did not follow the procedure for introducing new documents, such as filing a supplementary record. These omissions go to the root of the appeal and warranted striking out.
Discretion to strike out
Although striking out is discretionary and draconian, the unchallenged defects and delay justified its exercise in this case.
The court acknowledged the settled principle that striking out is a draconian act reserved for plain and outright instances and that the discretion depends on the peculiar circumstances of each case. Here the omissions and inclusions were significant, the application was unopposed, and the facts were conceded, so the discretion was properly exercised judiciously to strike out the appeal.
Legal principles established
#- Pleadings are foundational and essential documents must be included in a record of appeal; omission of documents referred to by the trial court undermines the appeal process.
- Non-compliance with the Court's rules on timely filing of a notice of appeal and preparation of a proper record of appeal can be fatal to an appeal, and the striking-out discretion must be exercised judiciously in light of the extent and impact of defects.
- Where an application to strike out is unopposed, the facts and grounds presented are effectively conceded.
Court orders
#- 1.The application dated 20th October 2020 to strike out the appeal is allowed
- 2.The appeal is struck out
- 3.The appellant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Civil Case No. 451 of 2017 (proceedings appealed from)
- Jurisdiction invoked
- Rules 84 and 87 of the Court of Appeal Rules, 2010 (as amended), invoking the Court's power under Rule 86 to strike out a notice of appeal or appeal
Relief refused
#Appellant's prosecution of the appeal
Notice of appeal filed out of time without extension of time and record of appeal missing essential documents
Costs
As costs follow the event, the costs of this application shall be borne by the appellant. Orders accordingly.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is now a settled principle that striking out a pleading is a draconian act, which may only be resorted to in plain and outright instances. The power of this court to strike out an appeal is discretionary and is exercised based on the peculiar circumstances of each case.
Failure to comply with these rules, particularly concerning the timely filing of the notice of appeal and the preparation of a proper record of appeal, can be fatal to an appeal.
For the reasons set out above, the application to strike out the appeal is merited and is hereby allowed.
As costs follow the event, the costs of this application shall be borne by the appellant. Orders accordingly.
Issues in the judgment
#The appellant's name and the case number/neutral citation of this application are not stated anywhere in the judgment, preventing full identification of the parties and the matter.
The judgment contains two unnumbered leading placeholders and begins substantive numbering at 6/paragraph numbering is inconsistent, suggesting an incomplete record copy of the judgment.
The identity and outcome of the ruling appealed from (High Court, 5th June 2020) are only described indirectly; the court below and its decision are not fully identified.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Laburnnam Courts Limited v Diamond Trust Bank Limited (Civil Appeal (Application) E358 of 2020) [2025] KECA 1213 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1213/eng@2025-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.